Ajit Kumar Dutta vs The State Of Assam And Anr on 5 February, 2026

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GAHC010290082025




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                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Bail Appln./1/2026

            AJIT KUMAR DUTTA
            SON OF LATE PADMESWAR DUTTA, R.O VILLAGE BAMGAON, WARD NO 4,
            P.O. CHARIALI, PIN 784176, P.S BISWANATH CHARIALI, DIST. BISWANATH,
            ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY THE PP, ASSAM

            2:RUPALI DEVI
            W/O HEMANTA DAHAL

            VILLAGE JAPORIGURI

            P.O CHARILI
             PIN-784176
            P.S. BISWANATH CHARIALI
             DIST. BISWANATH
            ASSA

Advocate for the Petitioner   : MR. P BORDOLOI, MS M NIROLA

Advocate for the Respondent : PP, ASSAM, MS P DAS(R-2),MR. M ALAM(R-2)
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                                    BEFORE
                    HONOURABLE MR. JUSTICE ANJAN MONI KALITA

                                          ORDER

Date : 05.02.2026

Heard Mr. P. Bordoloi, learned counsel appearing on behalf of the accused- applicant. Also heard Mr. B. Sarma, learned Addl. Public Prosecutor, representing the State respondent as well as Ms. P. Das, learned Amicus Curiae, representing the respondent no. 2.

2. This is an application filed under Section 483 of the BNSS, 2023, praying for grant of bail to the accused in connection with Special (POCSO) Case No. 95/2025, registered under Section 75(2) of the BNS, 2023, read with Section 10 of the POCSO Act, 2012, pending before the Court of learned Addl. Sessions' Judge-cum-Special Judge (POCSO), Biswanath Chariali, Assam.

3. As per the FIR lodged on 03.09.2025, the allegation against the accused is that he, being an Associate Professor at Biswanath College, had given a lift in his car to the daughter of the informant at around 6.30 PM on 23.08.2025. During the course of the ride back to her residence, it is alleged that the accused inappropriately touched her. It is further alleged that upon reaching her house, the accused expressed a desire to teach her and while doing so, again allegedly touched her inappropriately.

4. Although the alleged incident occurred on 23.08.2025, the FIR was lodged only on 03.09.2025, as the daughter of the informant did not disclose the incident to her parents at the relevant time. It is stated that on 02.09.2025, the victim girl addressed a written complaint to the Chairperson of the Internal Committee (Sexual Harassment Committee) of Biswanath College, regarding the alleged incident, and thereafter, on 03.09.2025, the instant FIR was lodged.

5. Upon receipt of the FIR, the police registered Biswanath Chariali P.S. Case No. 158/2025, under the aforesaid Sections. After investigation, police filed the Charge-

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sheet, vide Charge-sheet No. 161125, dated 29.11.2025, against the accused and thereafter, charges were framed against the accused by the Special Judge (POCSO), Biswanath Chariali, under Section 75(2) of the BNS, 2023, read with Section 10 of the POCSO Act.

6. The Trial Court record in connection to the Special (POCSO) Case No. 95/2025 has been produced before this Court. From the order dated 20.01.2026, it is seen that the PWs were absent on that day and therefore, fresh summons were directed to be issued to the PWs. Next date was fixed on 03.02.2026. As per the submission of the counsel appearing for the petitioner, none of the PWs appeared. It is also seen that the accused is in jail custody for the last 78 days. It is seen that an affidavit has been filed by the respondent no. 2 (the informant) to the effect that the respondent no. 2 shall not have any objection if the accused is granted bail by this Court, as the concerned FIR was lodged by her due to some misunderstanding of facts. In this connection, the relevant paragraphs from the affidavit are extracted herein below: -

"3. That, the deponent states that, the deponent has filed her Vakalatnama in the said case and that, there is no objection on the part of the deponent if the petitioner is granted bail by this Hon'ble Court.

4. That, the deponent states that, the said FIR was lodged by the deponent before the Biswanath Chariali Police Station due to some mis-understanding of facts."

7. It is to be noted herein that, that accused had earlier applied for a pre-arrest bail, vide AB No. 2272/2025, which was rejected by this Court, vide it's order dated 18.11.2025.

8. The learned counsel for the accused-applicant submits that the concerned FIR was filed by the respondent no. 2 due to certain mis-understandings. Therefore, later on, realizing the facts, the respondent no. 2 has filed the affidavit in the instant bail Page No.# 4/8

application by stating that she shall not be having any objection if the accused is granted bail by this Court. The learned counsel further submits that the accused is an Associate Professor serving at Biswanath College and is due to retire in another two years. The learned counsel submits that pursuant to a complaint received by the college authorities, the accused has already been placed under suspension. The learned counsel submits that the accused has no involvement whatsoever in the incident alleged in the FIR. The learned counsel submits that the accused, being sincere about his teaching duties, intended only to guide the victim girl academically, and on certain occasions, may have scolded her in connection with her conduct in class; however, he had no mala fide intention against the victim girl other than academic guidance. The learned counsel submits that certain SMS messages sent by the accused to the victim girl, relating to academic issues, were misunderstood, and one casual message, wherein he mentioned that he "loved" the girl or appreciated her performance, became viral, which may have created an unwarranted suspicion. The learned counsel submits that the accused is fully co-operating with the investigation after his arrest and he is in judicial custody for the last 78 days. The learned counsel submits that since the respondent no. 2, the mother of the victim girl has already submitted the affidavit by not opposing this instant bail application, the prayer of the accused-applicant should be granted by this Court.

9. In addition to the aforesaid submission, the learned counsel for the accused- applicant submits that while arresting the accused by the arresting authority, though he has been issued with an Arrest-Memo, but the same is not in compliance of Section 36 of BNSS, 2023. The learned counsel submits that as per the mandates of Section 36 of the BNSS, no signature of any witness who is a member of the family of the person arrested or, a respectable member of the locality, wherein the arrest was made, was taken on the Arrest-Memo. The learned counsel submits that in view of the aforesaid violation, the arrest of the accused being illegal, the accused should be released on bail on that ground alone.

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10. In support of his submissions, the learned counsel appearing for the accused- applicant has referred to the case of D. K. Basu, Ashok K. Johri vs. The State of West Bengal, State of U.P., reported in AIR 1997 SC 610, wherein the Hon'ble Supreme Court lays down that the police personnel carrying out arrest, shall prepare an Arrest- Memo at the time of arrest and such memo shall be attested by at least one witness. Therefore, since there is a violation of Section 36 of the BNSS, the learned counsel submits that on this ground alone, the accused could be granted the privilege of bail.

11. On the other hand, Mr. B. Sarma, learned Addl. P.P. appearing for the State, submits that there are sufficient incriminating materials against the accused in the instant case and the investigating authority, after due investigation, has filed the Charge-sheet. Thereafter, charges have been framed against the accused. The learned Addl. P.P. submits that the victim girl in the instant case is yet to be examined and therefore, he opposes granting of bail to the accused at this stage, as that may hamper the trial, as the accused can influence the victim and her family members.

12. In this connection, Section 36 and Section 62 of the BNSS being relevant are quoted herein below:-

"36. Procedure of arrest and duties of officer making arrest- Every police officer

while making an arrest shall-

(a) Bear and accurate, visible and clear identification of his name which will facilitate easy identification;

(b) Prepare a Memorandum of Arrest which shall be-

(i) Attested by at least one witness, who is a member of the family of the arrested person or a respectable member of the locality where the arrest is made;

(ii) Counter signed by the person arrested; and Page No.# 6/8

(c) Informed the person arrested, unless the Memorandum is attested by a member of his family, that he has a right to have a relative or a friend or any other person named by him to be informed of his arrest.

"62. Arrest to be made strictly accordingly to Sanhita-no arrest shall be made

except in accordance with the provisions of this Sanhita or any other law for a time being in force providing for arrest".

13. A conjoint reading of the aforesaid two Sections makes it clear that a Memorandum of Arrest is a written document that serves as confirmation that the individual in question was arrested. In addition to meeting the essential requirements, it must provide particulars that are specific. A minimum of one witness is required to vouch for its authenticity. For the best possible outcome, this witness ought to be a member of the accused person's family and in the event that a family member is unavailable, a respectable individual of the locality in which the arrest is made may be called upon to testify as witness. In the second step, of course, the arrested person is required to counter sign the Arrest Memo himself.

14. What is discernible from the aforesaid two sections is that there is mandate provided by the aforesaid Section 36 that the Arrest Memo has to be signed by a witness; either he is a member of the family of the arrested person or a respectable member where the arrest is made. Section 62 provides that no arrest shall be made except in accordance with the provisions of BNSS or any other law for the time being in force providing for arrest. Therefore, any arrest that has to be made is mandatorily has to comply with the provisions and procedure of arrest while making such arrest. Non compliance of such provisions will be in violation of the mandatory provisions which will, in turn, make such arrest illegal. Once an arrest becomes illegal, the arrested person shall have an unfettered right to be set at liberty, i.e., to be released on bail.

15. As mentioned above, an affidavit has been filed by the mother of the victim girl, Page No.# 7/8

categorically stating that the concerned FIR was filed by her due to certain mis- understanding of facts and she does not object the accused getting bail in the instant case.

16. It is seen that the Arrest-Memo does not contain any signature or attestation of any person, neither of the family member of the arrested person, nor of any respectable person of the locality, wherein the arrest was made. This clearly violates the mandate of Section 36 read with Section 62 of the BNSS, 2023.

17. Taking into account the ratio laid down by the Hon'ble Supreme Court in the case of D. K. Basu (supra) as well as the procedural mandates laid down under Section 36 of the BNSS, 2023, this Court is of the considered opinion that there is a violation of the mandate of Section 36 of the BNSS, 2023, in the instant case, while arresting the accused, whereby curtailing his fundamental rights guaranteed under Article 21 and 22 of the Constitution of India.

18. Considering the facts of violation of Section 36 of the BNSS, 2023, as well as the affidavit filed by the respondent no. 2 (the mother of the victim girl), in the instant case, this Court is of the considered opinion that the accused shall be granted the privilege of bail at this stage. Therefore, it is directed that the accused shall be released forthwith on bail, on furnishing a bail bond of Rs. 50,000/- (Rupees Fifty Thousand only) with two sureties of like nature to the satisfaction of the learned Special Judge (POCSO), Biswanath Chariali, Assam, subject to the following conditions: -

1. that, the accused shall appear before the learned Trial Court as and when required during the trial of the case;

2. that, the accused shall not try to get in connection with the victim girl or her family, in any manner, during the trial of the case to influence them in any manner;

3. that, the accused shall provide details of his Aadhar Card, Driving License, Page No.# 8/8

PAN-Card and Passport (if available) to the Special Judge (POCSO), Biswanath Chariali, Assam.

4. that, the accused shall not directly or indirectly make any inducement, threat or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Investigating Authority.

19. In view of the aforesaid directions, this bail application stands disposed of as allowed.

JUDGE

Comparing Assistant